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Friday, August 5, 2016

Chink in Your Anti-Harassment Armor?


By: Thomas Eden

Kandice Pullen, an employee of the Caddo Parish School Board, was hired as a temporary clerical employee working in the in the central office purchasing department. Pullen claimed that her supervisor sexually harassed her by repeated verbal sexual harassment, touched her thigh once and put his arm around her several times. On one occasion he also called her into his office and showed her inappropriate pictures of other women that he had stored on an external hard drive. Pullen did not contemporaneously tell anyone at the office about the harassment. Later, another temporary clerical employee filed a sexual-harassment complaint against the same supervisor based on similar inappropriate remarks and identified Pullen as a person potentially subject to similar harassment.

The Board placed its chief operations officer in charge of investigating the complaint, who preparing a written report according to the Board’s standing procedures for investigation of sexual-harassment allegations. He concluded that the Supervisor’s conduct was not sexual harassment but was nonetheless unprofessional and inappropriate. He recommended suspension without pay for a week and required to undergo counseling. The Board’s superintendent agreed, and punishment was imposed. In the meantime, Pullen filled an EEOC Charge detailing the Supervisor’s alleged harassment. Pullen later sued the Supervisor and the Board.

While the Board won at the Federal District Court level, the 5th Circuit Court of Appeals found a chink the Board’s defense. Normally an employer is strictly liable for a supervisor’s harassment of an individual whom he or she supervises. The Ellerth/Faragher affirmative defense is an exception and is available to employers where a plaintiff alleges sexual harassment by a supervisor but does not claim that the harassment resulted in a tangible employment action. The defense has two elements.

First, the employer must show that it exercised reasonable care to prevent and correct sexual harassment. Second, it must establish that the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer. The employer bears the burden of proving both elements by a preponderance of the evidence. Pullen produced evidence that, if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, and were not told whom to contact regarding sexual harassment reports. Pullen, and her Supervisor, testified they were not given a copy of the harassment policy or any training on the subject. The 5th Circuit Court of Appeals on July 20 concluded that the Board did not prove that the policy was sufficiently publicized, and thus held there was sufficient evidence for a jury to find that the Board did not take reasonable steps to prevent and remedy sexual harassment. The case will go to a jury.

Common Sense Counsel: There is simply no substitute for a legally compliant anti-harassment policy, coupled with employee anti-harassment training. At the end of the day you need in personnel files each employee’s acknowledgment signature on the anti-harassment policy, and training log, or you may also find your anti-harassment Armor is full of holes.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com